AJMAL HUSSAIN vs K.M. HUSSAIN DARABU

1. ' The applicant has impugned the ex parte judgment and decree dated 4-2-1991 passed by the Small Causes Court, Karachi, in Civil Suit No,91/1990 whereby suit for Rs,5,000 filed by the respondent against the applicant has been decreed with costs.

2. ' The facts in brief are that the respondent filed a suit against the applicant and stated that he is an advocate and being a retired Senior Officer of the Government of Pakistan, he is known to many officers including the applicant/defendant, who was formerly a Chief Engineer in P.IA. And after his retirement, joined C.A.A. As an Air Craft Surveyor. In 1988 the respondent was engaged by the applicant for preparing two cases against P.IA. And CAA., for the recovery of certain dues. Three drafts of each case were prepared by the respondent and given to the applicant. The typing and despatch expenses for such cases were also borne by the respondent. Initially the applicant was asked. To pay Rs,7,000 as fee of the respondent, but later on reduced to Rs,5,000 which amount also was not paid. The respondent requested the applicant many a times for payment of the said amount of Rs,5,000 but the applicant asked the respondent to recover it through Court of law. As such, suit for recovery of Rs,5,000 was filed by respondent in the Small Causes Court Karachi, on 22-11-1990.

3. ' On 16-1-1991, Vakalatnama was filed on behalf of the applicant by the Advocate and copy of the plaint was received. The next date of hearing was 4-2-1991. The advocate for the applicant on perusal of the plaint found that it did not disclose any cause of action and he accordingly drafted an application under Order 7, Rule 11, C.P.C., for presentation in the Court on 4-2-1991. On 4-2-1991, the Senior Advocate Mr. Akhtar Mehmood was busy before the High Court of Sindh in 5 suits before various Benches and his junior was also with him to attend to the said 5 suits. The junior counsel appeared before the Small Causes Court on 4-2-1990 at 10-15 a.m. Alongwith application for rejection of the plaint when he came to know that the suit had been decreed against the applicant/defendant before 10-15 a.m.

4. ' The application under Order VII, Rule 11, C.P.C. Carried by the junior counsel was placed on record.

5. On 7-2-1991 an application under Order IX, Rule 13 read with section 151, C.P.C. Was filed supported by the affidavits of the advocates for the defendant. In the application for setting aside the ex parte decree the fact that the advocate for applicant/defendant was busy before the High Court was mentioned and copy of cause list for 4-2-1991 was annexed. The application for setting aside the ex parte decree was decided by the learned Court of Small Causes Karachi, by order dated 4-5-1991 but before that, the applicant/defendant filed the present revision application challenging the ex parte decree.

6. ' The learned advocate for the applicant/defendant contended that the point for consideration before this Court would be whether the application under Order IX, Rule 13, C.P.C. Was rightly rejected as being not maintainable and in the alternative whether on evidence available, a decree could be passed ex parte against the applicant. The learned advocate has contended that although 4-2-1991 was a date given for appearance of applicant/defendant before the Court, he appeared on 16-1-1991 and accepted the summons and waived notice. On 4-2-1991 an application for rejection of plaint was drafted and taken by the junior counsel for presentation before the trial Court but he was informed that the suit had been decreed before 10-15 a.m. As there was no appearance by the defendant. It is contended that since the absence of the defendant was neither wilful nor without just cause, the ex parte decree should not have been passed as there was no material on record, except oral word of respondent/plaintiff. In the alternative, the application for setting-aside the ex parte decree should have been allowed giving chance to defendant to defend the suit on merits.

7. ' It is also contended by the learned advocate that while deciding. Applicant's application under Order IX, Rule 13, C.P.C., on 4-5-1991, the learned trial Court has referred to the provisions of Order XV, Rule 4, C.P.C., which reads as under:- "4. Failure to produce evidence where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies the Court may at once pronounce judgment or may, if it thinks fit, after framing and recording issues, adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues."

8. ' According to the learned advocate, under the above provision of law, the trial Court had to see whether the applicant/defendant had failed without sufficient cause to produce the evidence on which he relied. Sufficient cause was shown in application under Order IX, Rule 13, C.P.C. Where it was stated that the advocate was busy before the High Court, supported by the advocate's affidavits and the trial Court should have accepted the same as sufficient cause for the absence of the applicant/defendant and should not have passed ex parte decree. The learned trial Court has also observed in its order dated 4-5-1991 that the judgment passed against the applicant on 4-2- 1991 was not ex parte judgment and therefore, provisions of Order IX, Rule 13, C.P.C., were not applicable, but such finding is not warranted by law.

9. ' The respondent present in person contended that the applicant was on friendly terms with him and on account of the knowledge of the rules and regulations of P.IA. And CAA., he drafted the cases and gave the same to applicant for an agreed amount of Rs,5,000 as his professional fees.

10. He has also argued that the trial Court was justified in passing decree against the applicant on 4- 2-1991 as there was no appearance by the applicant or even an intimation when the case was called for hearing. According to him the reasons given by the. Trial Court, for rejection of applicant's application for setting aside ex parte decree are well balanced and need no interference by this Court, exercising revisional jurisdiction.

11. I have heard the arguments of the learned advocates and perused the judgment dated 4-2-1991 as well as the order dated 4-5-1991. On 4-2-1991 which was date of hearing, the advocate for the applicant/defendant was busy before this Court in 5 suits as is borne out by the cause list and affidavits filed. For this date also all that the applicant's advocate proposed to do was to move an application for rejection of the plaint which according to him disclosed no cause of action. This application was duly prepared and typed for presentation. Since the senior counsel as well as his junior were busy before the High Court the application was taken to the trial Court at 10-15 a.m.

12. When it transpired that the suit had already been decreed. In these circumstances the application under Order IX, Rule 13, C.P.C., disclosing sufficient cause for nonappearance of applicant/defendant should have been considered and decided' on merits. The plaint does not show that the respondent either filed a copy of the drafts prepared for giving to the applicant, or even relief upon such documents. He did not even give a legal notice to the applicant before filing of the suit. In these circumstances it would have been appropriate for the trial Court to have set aside the judgment and provided applicant a chance to disclose his case and then decide the suit on merits. In 1987 M LD 2355 the absence of the counsel due to his pre-occupation in some other Court was held as not intentional and wilful, and the order of setting aside ex parte proceedings was not interfered with. The judgment and decree dated 4-2-1991 are ex parte as the same were passed due to the absence of applicant/defendant. The remedy available to a party in such circumstances would be either to move an applicition under Order IX, Rule 13, C.P.C., an appeal under section 96 or a revision under section 115, C.P.C. These remedies are concurrent and not exclusive of each other. The applicant therefore, filed an application under Order IX, Rule 13, C.P.C., before the trial Court and also filed revision before this Court. While his revision was pending before this Court, his application for setting aside the ex parte judgment has also been dismissed.

13. ' In view of the grounds shown in application for setting aside ex parte judgment and decree the trial Court ought to have allowed the same giving a chance to the applicant to defend the suit on merits. In my view the trial Court failed to exercise the jurisdiction vested in it while deciding the suit and the application under Order IX, Rule 13, C.P.C. The judgment and decree dated 4-2-1991 and the order dated 4-5-1991 cannot therefore, be sustanied and the same are set aside. The case is remanded to the learned Small Causes Court, Karachi, to decide the same afresh after notice to the parties. In these circumstances there shall be no order as to costs.